2023 C L C 1079
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Gul Hassan Tareen, JJ
ABDUL SATTAR and others ----Petitioners
Versus
ABDULLAH and others ----Respondents
Regular First Appeals Nos.35 and 36 of 2016, decided on 23rd November, 2022.
(a) Qanun -e-Shahadat (10 of 1984) ---
----Arts. 17 & 79--- Contract Act (IX of 1872), Ss.24 & 26--- Specific Relief Act (I of 1877),
S.12 ---Sale agreement ---Proof ---Vendee filed a suit for specific performance against the
vendors on the basis of a contr act of sale ---During pendency of suit, two persons (plaintiffs
of later suit) filed a suit for specific performance of oral contract against the vendors ---
Vendors denied the claim of vendee and admitted the claim of plaintiffs ---Trial Court
decreed the sui t of vendee only to the extent of two vendors ---Validity ---Document was
required by Art. 17 of the Qanun- e-Shahadat, 1984 to be attested by two witnesses and the
execution thereof to be proved through the testimony of two marginal witnesses per Art.79 of
the Qanun- e-Shahadat, 1984--- However, the agreement between vendee and vendors in the
present case was attested by six marginal witnesses and five of them were produced i.e. even beyond the requirement of law ---Trial Court had rightly decreed the suit to the extent of two
vendors because the two sisters and mother of the vendors were neither executants of the contract nor had they authorized the vendors to sell out their shares ---So far as agreement
between the plaintiffs and vendors was concerned, record re vealed that the property was
transferred in exchange of a certain price as well as in exchange for the daughter of one of the plaintiffs ---Such an agreement was not only immoral and against public policy but also
void under Ss.24 & 26 of the Contract Act, 1872 ---Vendors had malafidely supported the suit
of the plaintiffs ---Appeals filed by vendors and plaintiffs were dismissed, in circumstances.
(b) Contract Act (IX of 1872) ---
----S.24 ---Agreements void, if considerations and objects unlawful in part ---Scope---If a
contract or promise is founded upon a legal and an illegal consideration; the illegal consideration cannot be separated from the legal consideration and rejected, the illegality of part vitiates the whole.
(c) Transfer of Property Act (IV of 18 82)---
----S.54 ---"Sale" defined ---Scope ---Four ingredients of a sale are, the parties, the subject
matter, the price and the conveyance---Word price means only "money" ---Any consideration
in sale without money or part money and part other thing, is not a sale.
Muhammad Akram Shah for Appellant (in R.F.A. No.35 of 2016).
Ms. Shakar Bibi Baloch for Respondents Nos.1 and 2 (in R.F.A. No.35 of 2016).
Shah Rasool Kakar for Respondent No.6 (in R.F.A. No.35 of 2016).
Ms. Shakar Bibi Baloch for Appellants (in R.F.A. No.36 of 2016).
Shah Rasool Kakar for Respondent No.1 (in R.F.A. No.36 of 2016).
Date of hearing: 14th November, 2022.
JUDGMENT
GUL HASSAN TAREEN J. ---The Regular First Appeals Nos.35/2016 and 36/2016,
have been filed from a common judgment and decree dated 28th April, 2016, whereby the
Court of Majlis -e-Shoora Musakhail at Loralai ("Trial Court") has partly decreed the suit
instituted by Buzdar and dismissed the suit instituted by Abdul Sattar and another. Since both
the appeals arise out of a common judgment and contain common questions of law and facts, therefore, are being decided through this common judgment.
Facts of RFA No. 35/2020:
2. The appellants Abdul Sattar and Mulla Khan Muhammad instituted a Civil Suit No.
03/2011 for specific performance of contract dated 9th June, 2010 against the vendors, their
two sisters, mother (respondents Nos. 1 to 5) and the said Buzdar (respondent No.6) . They
averred that the predecessor of respondents Nos. 1 to 5 namely Saadullah was owner of the
property bearing khasra Nos. 3410 to 3419, 3456, 3457, 3459 to 3463, 3465 and 3458, measuring 18 R -26 P, Mouza Sara Khawa, Tehsil Musakhail ("suit property"). On 10th
January, 2009, the respondents Nos. 1 and 2 had sold out the suit property to the appellants in exchange for a sale price of Rs.500,000/ - and placed them in the possession thereof. Later,
on 9th June, 2010, the oral sale was reduced into writing through a contract of sale dated 9th June, 2010. In the contract of sale, the respondents Nos. 1 and 2 ("the vendors") undertook for transfer of mutation of the suit property, on demand of the appellants. They also averred that the respondent No.6 with mala -fide intention forged a contract of sale and thereby
started his claim of ownership on the suit property. The appellants also averred that they are illiterate and belong to the profession of shepherds. They also averred that they have paid the entire price of the suit property and when they demanded mutation, the vendors with the
connivance of the respondent No.6 refused to transfer the mutation of the suit property to the appellants. Finally, they prayed that respondents Nos.1 to 6 be refrained from any ki nd of
interference in their possession on the suit property and respondents Nos.1 to 5 be directed to transfer mutation of the suit property in their names. The vendors admitted the claim of the appellants by submitting a conceding written statement wherei n they admitted the execution
of contract of sale dated 9th June, 2010, possession of the appellants and receipt of
Rs.500,000/ -. The respondent No. 6 started contesting the suit by submitting a contesting
written statement. On such pleadings, the Trial Co urt framed seven issues. In support of their
claim, the appellants examined Wali Ullah (PW- 1), Shadi Khan (PW -2), Muhammad Saleh,
the scribe (PW- 3), who tendered in evidence the copy of contract of sale as Ex: P/3- A.
Finally, the appellants through attorne y Khan Muhammad made statement on oath. In
rebuttal respondent No. 6 appeared as defendant No.6. The vendors through attorney Noor
Muhammad made statement on oath. After hearing both sides, the Trial Court vide impugned
judgment dismissed the suit instituted by the appellants.
Facts of RFA No. 36/2016:
3. Respondent No.1 namely Buzdar instituted a Civil Suit No.04/2010 for specific
performance of a contract of sale dated 12th November, 2009, against the appellants and the respondents Nos. 2 to 4. He averre d that vide contract of sale dated 12th November, 2009,
the appellants and the respondents Nos. 2 to 4 had sold out their half share in the suit property in exchange for a price of Rs.500,000/ -. Towards payment of the price, the
respondent No.1 had paid Rs .200,000/ - at the time of contract of sale, while Rs.200,000/ -
was agreed to be paid in May, 2010 and Rs.100,000/ - on 1st November, 2010. Jamaluddin
son of Jumma Khan stood guarantor for the respondent No.1 for payment of the balance price. At the time of contract of sale, the possession of the suit property was handed over to
the respondent No. 1. In May, 2010, when the respondent No.1 tendered Rs.200,000/ - to the
appellants, they refused to receive it. Finally, the respondent No.1 prayed that appellants be restrained from interference in the possession of the respondent No.1 on the suit property and the Revenue Authority may be directed to transfer the suit property in his name on payment of balance Rs.300,000/ -. The appellants filed a common written state ment and denied the
execution of contract of sale dated 12.11.2009, receipt of advance Rs.200,000/ - and the
possession of the respondent No.1 upon the suit property. The respondents Nos.2 to 4 despite service through publication, did not appear before the Trial Court as such, they were proceeded against an ex -parte order. The Trial Court framed six issues. In support of his
claim, the respondent No.1 examined the marginal witnesses of the contract of sale (Ex: PW/1) namely Syed Meer (PW- 1), Pakistan (PW -2), Essa Khan (PW -4), Sulla Jan (PW -5)
and Jamaluddin (PW -6). The revenue extract of the suit property was brought on record
through Ali Muhammad Patwari (PW -3) as Ex: P/3- A and Ex: P/3- B. Finally, the respondent
No. 1 appeared as his own witness. The appella nts examined one witness Kamal Khan and
made statement on oath through attorney. The suit was decreed by the Trial Court only to the extent of shares of the appellants in the suit property.
4. Mr. Muhammad Akram Shah, Advocate, counsel for appellants in R.F.A. No.35/2016
states that the vendors admitted the suit of the appellants through a conceding written statement. He states that the vendors through attorney appeared on oath and supported the suit of the appellants. However, the Trial Court despite of unconditional admission of the vendors illegally dismissed the suit of the appellants. Ms. Shakar Bibi Baloch, Advocate for the vendors (appellants) in RFA No.36/2016 states that the contract of sale of the respondent No. 1 (Buzdar) is a forged document, whe reas the appellants have supported the case of the
appellants of the R.F.A. No. 35/2016. She states that the respondent No. 1 has failed to prove the execution of his contract of sale. Mr. Shah Rasool, Advocate, counsel for respondent
No.1 (Buzdar) states that the contract of sale (Ex: P/3 -A) is a forged document, whereas the
respondent No.1 has proved the execution of the contract of sale.
5. We have heard learned counsel for the parties and have gone through record of the
case. The following two points for determination are being recorded for the decision of the
appeals:
(a) Whether the appellants (R.F.A No. 36/2016) executed contract of sale dated 12th November, 2009 with the respondent No. 1, received Rs.200,000/ - as advance and
placed him in possession of the suit property?
(b) Whether the contract of sale dated 9th June, 2010 relied upon by the appellants (R.F.A No. 35/2016) is enforceable at law?
6. The perusal of record reveals that the appellants in R.F.A. No.36/2016 are the
common vendors of the res pondent No.1 and of appellants in R.F.A. No.35/2016. Before the
Trial Court, both sets of purchasers were claiming purchase of the suit property from the said vendors on the strength of their respective contract of sales. In R.F.A. No. 35/2016, the appellants claimed that they have purchased the suit property from the said vendors on the basis of a contract of sale dated 9th June, 2010, while the respondent No.1 in R.F.A. No. 36/2016 claimed that he has purchased the suit property from the said vendors through a contract of sale dated 12th November, 2009. The said vendors through their common written statement had admitted that they had sold out the suit property to the appellants of R.F.A. No.35/2016 through contract of sale dated 9th June, 2010 and admitte d the execution of the
said contract, receipt of price and handing over possession. Whereas, the vendors specifically denied the contract of sale dated 12th November, 2009, receipt of Rs.200,000/ - and handing
over possession of the suit property to the res pondent No. 1 (Buzdar). The respondent No. 1
examined five marginal witnesses of his contract of sale dated 12th November, 2009 whom tendered it in evidence as Ex: PW/1.
7. The Ex: PW/1 is attested by six marginal witnesses. Syed Mir (PW -1) appeared and
deposed that the Ex: pw/1 was executed in his presence by the vendors. The Ex: pw/1 was
executed by the parties thereof and signed by the marginal witnesses in his presence. The PW-1 has stated the terms of the Ex: pw/1 in detail and with clarity. The margin al witness,
Pakistan appeared as PW- 2 and made a statement in line with the PW -1. He also recognized
his signature on the Ex: PW/1. Essa Khan, Sulla Jan and Haji Jamal -ud-Din appeared as PW-
2, PW -5 and PW -6, respectively and verified execution of the Ex: P W/1 by the vendors and
also recognized their signatures on the said exhibit. Though the document is required by Article 17, the Qanun -e-Shahadat Order 10, 1984 ("Q.S.O"), to be attested by two witnesses
and the execution thereof to be proved through the te stimony of two marginal witnesses per
Article 79, the Q.S.O. However, the Ex: pw/1 has been attested by the six marginal witnesses and the respondent No. 1 has produced five witnesses i.e. even beyond the requirement of law. The respondent No.1 appeared on oath and stood firm in his cross -examination. The
respondent No.1 has fully discharged the burden of proof regarding proof of the execution of the Ex: pw/1 and the Trial Court has rightly held as such. The Trial Court has decreed the suit of the responden t No.1 to the extent of the shares of the vendors in the suit property
because, the two sisters and the mother of the vendors were neither executants of the said
exhibit nor they authorized the vendors to sale out their shares through a registered power of
attorney. The respondent No.1 has not impugned the part dismissal of his suit through an
appeal or cross -objection before this Court which therefore, attained finality. Though the
respondent No.1 had not applied to the Trial Court for deposit of the balance price i.e. Rs.300,000/ - in Civil Court Deposits ("C.C.D"), however, he is directed to deposit further
Rs.300,000/ - in the Trial Court, at the time of filing of the execution petition. He should have
deposited the balance price in the C.C.D at the first hearing of the suit, which he failed, therefore, he is liable to pay an extra amount of Rs.300,000/ -. Therefore, the point for
determination (a) is decided in affirmative.
8. So far as the case of appellants in RFA No. 35/2016 is concerned, they in their s uit
have claimed that they through contract of sale dated 9th June, 2010 (Ex: P/3- A) had
purchased the suit property and paid Rs. 500,000/ - to the said vendors. The vendors through
their common written statement have admitted the execution of Ex: P/3 -A, re ceipt of
Rs.500,000/ - and handing over possession of the suit property to the appellants. The vendors
also appeared on oath through attorney and owned the execution of Ex: P/3- A. They all over
shown willingness for transfer of the suit property in the reve nue record in the names of the
appellants. However, the legal status of the Ex: P/3 -A, is not of a legal contract rather is an
agreement. The relevant from Ex: P/3 -A is reproduced hereunder:
The terms of Ex: P/3- A reveal that the vendors had sold out the suit property to the
appellants in exchange for a price of Rs.500,000/ - as well as in exchange for the daughter of
Abdul Sattar appellant No.1. How a human being could be made a component of a price in a
sale transaction. The appellant No.1 besides Rs.500,000/ - had given her daughter namely
to the second vendor namely Nasrullah. The Ex: P/3- A is a void contract which is not
only immoral, against public policy as well as void under sections 24 and 26 of the Contract
Act, 1872 ("Act 1872"). Section 24 reads:
"24. Agreement void, if consideration and objection unlawful in part:
If any part of a single consideration for one or more objects, or any one or any part of any one of several considerat ions for a single object is unlawful, the agreement is
void."
Since, the performance of Ex: P/3 -A is for an illegal act, the whole Ex: P/3 -A is void.
And even if a contract or promise be found upon a legal and an illegal act, consideration and the illegal consideration cannot be separated from the legal consideration and rejected, the
illegality of part vitiates the whole. The Ex: P/3- A consists of a number of terms and
conditions, each condition does not form a separate contract but is an item in the one
agreement of which it is a part. The consideration for each condition in a case like this is the consideration for the contract as a whole. It is not split up into several considerations apportioned between each them separately. Therefore, the Ex: P/3- A is not a contract. The
section 26 of the Act, 1872 is relevant which reads:
"26. Agreement in restraint of marriage is void.
Every agreement in restrain of the marriage of any person other than a minor is void."
According to section 2(h), the Contract Ac t, 1872, an agreement enforceable by law is
a contract. Since Ex: P/3 -A is an agreement, but not enforceable by law, therefore, is a void
contract. According to the section 54, the Transfer of Property Act, 1882, there are four ingredients of a sale i.e. t he parties; (ii) the subject matter; (iii) the price; and (iv) the
conveyance.
The word price means only "money". Any consideration in sale without money or part
money and part other thing, is not a sale. The consideration in Ex: P/3- A is not only money
rather a woman (though mentioned it as Nikah with appellant No. 2). The Ex: P/3- A is an
exchange of a woman for the suit property which is against the law and the Shariah. Though the appellants, in their suit, have only claimed specific performance of the E x: P/3 -A to the
extent of mutation of the suit property, however, since part consideration of the Ex: P/3- A is
void under section 24 of the Act, 1872, therefore, the Trial Court has rightly non- suited the
appellants. Since the suit property was sold to Buz dar by the vendors through a contract of
sale dated 12th November, 2009, therefore, the vendors could not have sold out again to the appellants. Therefore, the point for determination (b) is resolved in negative.
9. The impugned judgment is well reasoned. The vendors malafidely supported the suit
of the appellants because of consideration of a helpless woman. The RFA No.35/2016 filed by the appellants is dismissed with costs. The RFA No.36/2016 is dismissed, however, the respondent No.1 shall pay an extra a mount of Rs.300,000/ - to the appellants (Abdullah and
Nasrullah) at the time of filing of execution application. The impugned judgment is upheld with the above mentioned minor addition.
Decree sheet be drawn.
SA/33/Bal. Appeals dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.